NAMDEV SITARAM BHOSALE & ORS. Vs THE STATE OF MAHARASHTRA

Judgment

1. This appeal is directed against the conviction of the appellants for offences punishable under Sections 363, 366-A, 342 read with section 34 of the Indian Penal Code and Section 5 of the Immoral Traffic (Prevention) Act, 1956 and sentence of R.I. for three years with fine of `.500/- or in default R.I. for three months for offence punishable under Sections 363, 366-A read with 34 of IPC, R. I. for one year with fine of `.500/- or in default R.I. for three months for offence punishable under Section 342 of IPC, and R.I. for 7 years with fine of `.500/- or in default R.I. for three months for offence punishable under Section 5 of the Immoral Traffic (Prevention) Act, 1956, respectively on the three counts, imposed on appellant Nos 1 and 2; and sentence of R.I. for three years with fine of `.500/- or in default R.I. for three months, imposed upon appellant No.3 Vimal, for offences punishable under Section 328 of the Penal Code, by the learned Additional Sessions Judge, Pandharpur, on conclusion of Sessions Trial No.192 of 2000 before him.

2. Facts which are material for deciding this appeal are as under:-

On 7^thJune, 2000, one Gangadhar gave report that his

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minor daughter of 13 years, was missing from 25^thMay, 2000. The victim was stated to have been seen in the company of appellants. An offence was registered and investigation commenced. Head Constable Mohmed Rafiq Khatib arrested appellant Vimal. Further investigation was taken up by API Thorat. After about two months, one of the victims disclosed about complicity of the appellants in taking her away and administering stupefying material and subjecting her to sexual intercourse by sending customers to her at Nazare Math. Another girl was also stated to have been similarly subjected to prostitution by the appellants. The victims were sent for medical examination. Statement of one of the victims was caused to be recorded under Section 164 of the Code of Criminal Procedure. The appellants were arrested. On completion of investigation the chargesheet was sent up, alleging involvement of appellant in offences punishable under Sections 363, 366-A, 342, 328 , 376(2) (g) read with section 34 of the Indian Penal and section 5 of the Immoral Traffic (Prevention) Act, 1956.

3. The learned Judicial Magistrate First Class, Sangola, committed the case to the Court of Sessions. Upon commitment of the case, it was assigned to the Additional Sessions Judge, who charged the accused persons of offences under Sections 363, 366- A, 342, 328, 376 (2) (g) read with section 34 of the Indian Penal

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Code and section 5 of Immoral Traffic (Prevention) Act, 1956. Since all the accused persons pleaded not guilty, they were put on trial at which the prosecution examined in all 12 witnesses in its attempt to bring home the guilt of the accused persons. In defence two witnesses were examined.

4. After considering the prosecution evidence in the light of defence of false implication, the learned Additional Sessions Judge, acquitted the accused Nos 4 to 9 of all the offences with which they were charged. He convicted the accused Nos 1 to 3 the appellants and sentenced them as indicated earlier. Aggrieved thereby the appellants are before this Court.

5. I have heard learned counsel for the appellants and the learned Additional Public Prosecutor for the State. Since the appellants were not admitted to bail pending hearing of this appeal, it appears that the appellants had been released after serving their sentence. Even so with the help of both the learned counsel I have gone through the entire evidence on record.

6. P.W.1 Dr. Umesh Karanjkar stated having examined one of the victims and stated that victim's hymen was torn, though no opinion about rape could be given. He proved certificate at Exh. 10

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and the OPD papers at exh.11. P.W.2 is one of the victims. She stated that when she was waiting for a bus for going to village Kolegaon where her mother was staying, appellant Nos 1 and 2 came in a jeep and inspite of her protests, took her in the jeep to village Mahud where appellant No.3 Vimal was also present. Vimal is alleged to have mixed some stupefying substance in an Omlet. Thereafter appellant Namdeo is alleged to have forcible sexual intercourse with her. She was taken to Nazare Math, where too some sedative was added in omlet which was served to her and thereafter customers were sent to her who had sexual intercourse with her. She stated that from Nazare math, she was sent to Ichalkarani where again she was forced to have sexual intercourse with the customers. She was then taken to Sangli, where too some customers were sent to her who had forcible sexual intercourse with her. She stated of repeated intercourses by taking her to Miraj and then Kolhapur. From Kolhapur, she was again brought back to Sangli and from there, she was made to sit in a bus going towards Atpadi. She returned to Diganchi and returned to her home and informed her parents of the ordeal which she had undergone.

7. Her cross examination shows that the places from where she was picked up and the places where she was taken were not isolated places. She stated that her father knew a hotel keeper at Mahud where she was waiting for S.T. bus for going to

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Kolegaon. She claimed to have raised cries when she was being forcibly taken away but states that none came to her rescrue. She stated that policemen were constantly present at Nazare Math for checking of the vehicles. There are Dhabas on both sides of the road. She admitted that she could see the policemen whenever she went out from the rear door of the place, where she was kept. She stated that she had travelled from one place to the other, sometimes by public transport and even by railway. She stated that after her return home she went to police station, Sangola to have her statement recorded after 2 to 3 policemen had come to her house and had asked her to pay heed to what her parents were sayings.

8. P.W. 12 is the other girl, who had been similarly victimized. She stated that her sister used to dance in fair and as her sister was not in a position to dance, one day she had gone as a substitute, from where the appellant Nos 1 and 2 had picked her up and taken to her to Nazare Math. She was also given some water adding ganja and some sedative, whereafter she had been raped by appellant Nos 1 and 2, who then started sending customers to her. She stated that the girls brought to Nazare math used to be undressed and concealed under heap of filth, obviously to avoid such girls from running away. She stated that P.W.2 was one such

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girl who was also with her. She claimed to have told the parents of P.W.2 that appellants had taken away P.W.2. In the cross examination she stated that she had come to the Court with one Guram Madam, who had told her as to what she was to depose in the Court and her statement was read over to her. She was told that she was to depose as per statement. She claimed to have told the police that to earn her livelihood, she had started working as prostitute.

9. P.W.3 Gangadhar More is P.W.2's father. He stated having given report to the police 5 to 6 days after his daughter was missing. He proved his report at Exh.14. In the report, he had specifically named appellant Nos 1 and 2 as the persons who had taken his daughter from the information which he had received from P.W.12. He denied the suggestion that his daughter used to get angry and leave the house or that he gave report at the instance of some policemen.

10. P.W.4 Prakash Sapate proved panchnama at Exh.16. P.W. 5, Shri. Vishnu Nagane, proved the school leaving certificate of victim P.W.2, which shows her date of birth to be 5^thJanuary, 1986. The certificate is at Exh.20. In cross examination he admitted that he could not tell as to who had given information about the date of birth. P.W.6 Head Constable Kiran Nawale had received report from

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P.W.3 Gangadhar vide Exh.14 and claimed to have handed over investigation to Head Constable Khatib. P.W.7 Lata claimed to have seen the victim at Nazare Math and stated that the appellants are in the business of running prostitution racket. However, in the cross examination she admitted that she had seen P.W.l2 for the first time when the police showed that girl to her. P.W.8 Dr. Aironi, is the Radiologist, who had examined X-ray plates in respect of P.W. 2 and found that she was more than 15 years but less than 16 years in age. He proved his report at Exh.26. He stated in the cross examination that as per Dr. Modi, the difference in age could be about two years whereas according to Dr. Parekh, it could be about 6 months.

11. P.W.9 Head Constable Khatib, stated that in course of investigation he had arrested appellant Vimal and recorded statements of number of witnesses. In cross examination he stated that he did not know if one of the accused persons, Parubai, had given a report against him to Anti Corruption Bureau, but denied that he implicated the accused persons in this case out of vengeance. He denied having tutored to P.W.2 or her father and made them give report. P.W.10 PSI Kshirsagar, claimed to have arrested one of the accused person who has been acquitted. He sent supplementary chargesheet against that person. P.W.11 API

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Thorat, stated that he had reported to Dy. Superintendent of Police, Pandharpur for permission to investigate offence punishable under Section 5 of the Immoral Traffic (Prevention) Act, 1956. On completion of investigation, he claimed to have sent the chargesheet.

12. The defence examined one Uttam Morale, who stated that the appellant Kabir was was working in his power-loom unit and appellant had worked from 19^thMay, 2000 to 26^thMay, 2000 as per salary book at exh.45. D.W.2 Dy. Superintendent Of Police ACB Shri.Dilip Panse, stated that on 16.6.2000, one Parubai Bhosale had given report to him about demand of Rs.50,000/- by P.W.9 Head Constable Khatib for settling the case of alleged kidnapping of girl and that ultimately had agreed to receive sum of Rs.4,000/-. He states that thereafter Parubai did not visit him again.

13. Learned counsel for the appellants submitted that the learned trial Judge should not have believed the story about the victim's being drugged or put to prostitution since victim was allegedly with the miscreants for a period of almost four months during which she had many opportunities to contact the police. He further submitted that though the victim was missing from 1st June, 2000, no complaint was given till 7^thJune, 2000. According to

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learned counsel, it was curious that the victim returned on her own without being rescued by anyone after four months. Therefore, according to learned counsel, the learned trial Judge should not have believed this type of evidence, particularly in the face of allegations that P.W.9 Head Constable Khatib was alleged to have demanded bribe for settling the case of kidnapping of a girl and thereafter was alleged to have tutored the victim and her parents. He further submitted that the investigation was itself vitiated as it was conducted by an officer not entitled to carry it out. For this purpose, learned counsel relied on number of judgments. In re Kuppammal reported in A.I.R. 1939, Madras 339, Madras High Court had held that when law provides that a particular police officer shall deal with the offence, only such officer could investigate into the offence. The Court observed that there could be no "dealing with the offence" without an investigation into the matter and the expression "dealing with the offence" is wider than investigation and therefore, investigation was included in the expression dealing with the offence.

14. In State -vs- Mehro s/o Lakshman and ors, reported in A.I.R. 1962 Punjab 91, High Court of Punjab held that the investigation of offence carried out under the Suppression of Immoral Traffic in Women and Girls Act 1956, by a person who is

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not a special police officer would not be legal. The Court had relied on the judgment of re, Kuppammal (supra). The Supreme Court in

Delhi Administration -vs- Ram Singh, AIR 1962 63, (V 49 C 10), had again considered the expression 'dealing with the offence' appearing in section 13(3) of the Suppression of Immoral Traffic in Women and Girls Act 1956. The Court held that there was no reason to exclude the functions in relation to investigation. The Court found that it was clear that the Special Police Officer alone was competent to investigate and that the police officer not specially appointed as special police officer could not investigate into the offence under the Act.

15. In Smt Tara -vs- The State, reported in AIR 1965 Allahabad 372 (V 52 C 105), High Court of Allahabad relying on judgment of Supreme Court in Delhi Administration (supra), held that it was settled law that the police officer other than special officer cannot investigate offence under the Suppression of Immoral Traffic in Women and Girls Act 1956.

16. In respect of the provisions of Immoral Traffic (Prevention) Act, High Court of Karnataka in M. Rajeswari -vs- State by P.S.I (L and O), Kengeri Gate Police Station, Bangalore, in Criminal Writ Petition No.683 of 1999, decided on

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24^thJuly, 2001, held that the offence had to be dealt with by an officer of the rank of Inspector of Police, which was the minimum requirement under sub section (2) of section 13 of the Immoral Traffic (Prevention) Act, 1956 and had relied the judgment of Supreme Court in Delhi Administration -vs- Ramsing (supra). In

Mumtaj @ Behri -vs- The State (Govt of NCT) Delhi), reported in 2003 CRI. L. J. 533, Delhi High Court held that the investigation by officer who was not appointed as a special police officer was illegal and the trial was vitiated.

17. Similar are the observations of High Court of Kerala in

K.Radhakrishnan -vs- State of Kerala reported in ILR 2008 (2) Kerala, 493 where the Court held that only a special police officer could carry out investigation. In Amit Saha and anr -vs- State of West Bengal and anr reported in 2011 (1) CHN 423, the High Court of Calcutta also came to the conclusion that the investigation carried by regular police officer Sub Inspector and not by special police officer, appointed under the Act, was not valid and hence chargesheet was quashed.

18. Learned counsel also relied upon the judgment in

Prakash kumar @ Prakash Bhutto -vs- State of Gujarat,

reported in (2005) 2SCC 409, where too the provisions of Immoral

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Traffic Prevention Act, 1956, were considered in the context of provisions of other similar statutes. Learned counsel submitted on the basis of these judgments that it was impermissible for Police Sub Inspector to carry out investigation in the case, since in the districts an Inspector of police inchrge of the police station is designated as Special Police Officer, for the purpose of dealing with the offences of Immoral Traffic Prevention Act, 1956, in terms of notification dated 14^thMarch, 2006. Learned counsel, therefore, submitted that the investigation carried out by Police Sub Inspector P.W.10 Kshirsagar, on permission obtained by P.W.11 API Thorat from the Deputy Superintendent of Police vitiated the investigation carried out by officer who was not a special police officer.

19. Learned Additional Public Prosecutor submitted that it is not always that the investigation carried out without proper authorization or sanction would vitiate the trial. She submitted that the defect or irregularity in investigation has no bearing on the competence of the Court or procedure relating to cognizance or trial, and for that purpose, relied on judgment of Supreme Court in

Ashok Tshering Bhutia -vs- State of Sikkim, reported in

(2011) 4 Supreme Court Cases 402. In that case under the Prevention of Corruption Act, investigation was shown to have been conducted without proper order in writing by an officer not

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authorized otherwise. The Supreme Court observed in para 20 of the Judgment as under:-

"20 The issues raised hereinabove are no more res integra. The matter of investigation by an officer not authorized by law has been considered by this Court time and again and it has consistently been held that a defect or irregularity in investigation however serious has no direct bearing on the competence or procedure relating to cognizance or trial and, therefore, where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless a miscarriage of justice has been caused thereby. The defect or irregularity in investigation has no bearing on the competent of the Court or procedure relating to cognizance or trial (Vide H. N. Risbud v State of Delhi, AIR 1955 SC 196, Munnalal v. State of U.P., AIR 1964 SC 28, Khandu Sonu Dhobi v. State of Maharashtra (1972) 3 SCC 786, Styate of M.P. v. Bhooraji, (2001) 7 SCC 679, State of M.P. v Ramesh C. Sharma, (2005) 12 SCC 628, State Of Madhya Pradesh v. Virender Kumar Tripathi ., (2009) 15SCC 533."

20. In view of this, it is clear that the appellant cannot take advantage of the fact that the investigation was not carried out by Special Police Officer, notified under Immoral Traffic (Prevention) Act, 1956. Incidentally it has to be noted that the offence initially registered on the basis of report at Exh.14 was punishable under Section 363 of the Indian Penal Code. If the investigation

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subsequently led to disclosure of offence punishable under Section 5 of the Immoral Traffic (Prevention) Act, and the investigation agency filed such chargesheet after obtaining requisite permission as stated by P.W.11 Thorat, it can not be said that the entire investigation or subsequent trial was vitiated.

21. In this case, there is clear evidence of the prosecutrix as well as other victim P.W.12 that they were detained by the appellants at Nazare Math and were forced into prostitution. P.W. 12 had specifically stated that the girls brought used to be undressed and concealed in heap of filth. Learned counsel for the appellant submitted that even so the evidence of P.W.2 or P.W.12 would show that they had ample opportunities to contact police or other persons and therefore, this story ought to be disbelieved as it was cooked up in view of allegations against P.W 9 Mohd Khatib about the demand of bribe. The evidence of defence witness would show that there was indeed a report given against Head constable Khatib, but thereafter the complainant had failed to pursue the matter further. She did not at all turn up before D.W.2. Therefore, merely because a report was given about demand of bribe by Head Constable Khatib, it could not be said that a false case was cooked up against the appellants. Considering all this, it cannot be said that the learned trial Judge erred in holding the appellants guilty of

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offence punishable under Section 363, 366-A, 342 read with 34 of the Indian Penal Code and Section 5 of the Immoral Traffic (Prevention) Act, 1956. As far as appellant Vimal is concerned, there are clear allegations of her having administered stupefying substance to the victims. Therefore, her conviction for offence punishable under Section 328 of the IPC also has to be upheld.

22. As far as sentence is concerned, sentence of R.I. for three years with fine of `.500/- for offences under Sections 363, 366-A, 342 r/w 34 of IPC and R.I. for 7 years with fine of `.500/- for offence punishable under Section 5 of Immoral Traffic (Prevention) Act, 1956, imposed on appellant Nos 1 and 2 and sentence of R.I. for three years with fine of `.500/ or in default R.I. for three months imposed on appellant No.3, cannot be said to be excessive in the circumstances unfolded. In view of this the appeal is dismissed.

(R. C. CHAVAN, J.)

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